Government Phone Metadata Surveillance Likely Violates Fourth Amendment, Judge Rules

The plaintiffs brought the lawsuit against the National Security Agency, Department of Justice and federal officials, plus Verizon. The telco declined comment, pointing to the government’s role. Collection and analysis of phone metadata amounts to a search, the court found, saying the central question differs from the 1979 Smith v. Maryland Supreme Court case, which has provided the legal basis for much modern surveillance practice. Smith could not have envisioned NSA’s bulk metadata collection program nor how people in 2013 interact with their phones, the ruling said.

"We've seen the opinion and are studying it,” a Justice Department spokesman told us. “We believe the program is constitutional as previous judges have found.” In the Foreign Intelligence Surveillance Court, 15 judges have ruled 35 times that Patriot Act Section 215 does authorize this phone metadata collection, intelligence officials testified to the Senate Judiciary Committee last week.

Supporters of the USA Freedom Act (S-1599/HR-3361) were quick to issue statements praising the court ruling, which found plaintiffs made sufficient showing in their case that phone surveillance merits injunctive relief for their Fourth Amendment violation claim. “Americans deserve an open and transparent debate about the constitutionality, efficacy, and appropriateness of the government’s dragnet collection programs,” said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., sponsor of the USA Freedom Act. “I welcome today’s district court ruling regarding the collection of phone metadata, particularly because the litigants were afforded the opportunity to participate in an adversarial process.” He cited the oversight hearings his committee has held and backs more oversight.

"The ruling underscores what I have argued for years: The bulk collection of Americans’ phone records conflicts with Americans’ privacy rights under the U.S. Constitution and has failed to make us safer,” said Sen. Mark Udall, D-Colo., in a statement. “We can protect our national security without trampling our constitutional liberties. This court ruling only underscores the urgent need for Congress to act and pass my bipartisan bill to ensure the NSA focuses on terrorists and spies -- and not innocent Americans.” Udall is a member of the Senate Intelligence Committee and is a co-sponsor of two comprehensive surveillance overhauls authored by Leahy and Sen. Ron Wyden, D-Ore., both of which would end bulk collection of phone metadata. “Our continued work on the USA FREEDOM Act that I introduced will also offer further opportunities for oversight, and for action,” said Leahy. That bill has 18 co-sponsors in the Senate and 112 in the House.

The Klayman v. Obama case began in June, following surveillance revelations, in the U.S. District Court, D.C., and was argued on behalf of five individuals who allege their privacy was violated. “The Court concludes that plaintiffs have standing to challenge the constitutionality of the Government’s bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief,” Judge Richard Leon wrote in the 68-page ruling (http://1.usa.gov/1hXtIjM). The judge picked apart the government’s argument in defense of what it called a comprehensive metadata collection, which meant, according to Leon, that the government must have collected information from Verizon Wireless, AT&T and Sprint. The government, in a footnote, asked the court to view the plaintiffs’ concerns as theoretical possibility. “Candor of this type defies common sense and does not exactly inspire confidence!” Leon said. He called the phone surveillance program “almost-Orwellian technology,” alluding to George Orwell’s dystopic novel 1984.

The judge limits the ruling to phone surveillance and not a separate case plaintiffs submitted involving both phone and Internet surveillance. The court granted the plaintiffs’ requests to stop collecting and querying the phone metadata of the plaintiffs, it said, but plans to stay the order, pending appeal, due to the “significant national security interests at stake in this case and the novelty of the constitutional issues.” The judge did not find the plaintiffs’ First or Fifth Amendment rights were violated, if only because he pointed to the Fourth Amendment concerns. Plaintiffs have “a very significant expectation of privacy” regarding their phone metadata of the past five years, which is how long the NSA retains the data, Leon said. He denied the government showed how the program effectively stopped attacks against the U.S. or aided the government in a time-sensitive investigation.

"To my knowledge,” Leon wrote, “no court has ever recognized a special need sufficient to justify continuous, daily searches of every American citizen without any particularized suspicion. In effect, the government urges me to be the first non-[Foreign Intelligence Surveillance Court] judge to sanction such a dragnet.”

Klayman slammed NSA surveillance in a WND.com op-ed Friday (http://bit.ly/1c7Phvu). “If we do not act, then we will be enslaved to the god of a corrupt government, run by despotic establishment tyrants and hacks such as Obama, Reid, McConnell, Boehner and Pelosi, who will use the NSA, FBI, CIA and other agencies to further their own selfish and destructive agendas -- in effect waging war on the American people to keep us down and out,” Klayman said.

Kevin Bankston, policy director of the New America Foundation’s Open Technology Institute, argued the decision underscores congressional concerns. “Today’s decision supports what the Open Technology Institute has been saying since the NSA programs were revealed this summer: the bulk, suspicionless collection of millions of innocent Americans’ communications records violates their expectation of privacy,” he said in a statement. “We hope that this court ruling, in combination with last week’s statement from major Internet companies opposing the bulk collection of Internet records and growing bipartisan concerns about the NSA programs on Capitol Hill, will give President Obama pause when he is considering what reforms to the NSA programs he intends to announce in January.” The phone surveillance must end, Bankston said.

The White House recently received a set of recommendations from the five-member surveillance review group it appointed this fall, which the administration plans to release in January. President Barack Obama has “indicated very clearly that he wanted to engage in a broader review of our posture, if you will, and how we do things,” White House spokesman Jay Carney told reporters at a news conference Friday. “I'm speaking at a high altitude here, but this involves his view that, now 12 years after 9/11 and after the wars that we've engaged in, that we required a new look at the way we conduct this kind of business."

Congress has paid attention to the legal context of such surveillance practices. Ed Black, president of the Computer and Communications Industry Association, testified Wednesday at a Senate Judiciary Committee hearing that government surveillance violates the Fourth Amendment, prompting Sen. Sheldon Whitehouse, D-R.I., to repeatedly press Black on what court opinion he was basing that statement (CD Dec 12 p11). Black was unable to answer at the time. (jhendel@warren-news.com)